Two-Year Law School? Don’t Rush the Paper Chase.

June 13 (Bloomberg) -- When William Rainey Harper,
president of the University of Chicago, proposed to add a law
school to the new university in 1902, he entrusted the project
to Ernst Freund, a political-science professor, former
practicing lawyer and well-known expert on police power and the
free-speech rights of dissidents.

Freund argued that law students shouldn’t simply learn
practical strategies (as in the old days when law was taught by
apprenticeship) and the technical rules known as “black letter
law.” Rather, they should have an education that also included
economics, sociology, political theory and philosophy.

When Harper asked whether this curriculum wasn’t better
suited to a “research department of jurisprudence” rather than
to the worldly practitioner, Freund said absolutely not.
Practitioners will go out into a society where all is not well,
and they had better be equipped to think broadly, critically and
independently about it. Otherwise, they would simply be tools in
the hands of powerful interests, Freund said.

His vision of legal education gradually won out. Once
Chicago was an outlier; now it is just one example of the
dominant idea of legal education. Today, in addition to basic
law subjects and a variety of practice-oriented courses, law
students learn to see society through the lens of the social
sciences and the humanities, primarily in elective courses taken
during the second and third years.

Drastic Changes

Now that vision is under attack. What’s in the air -- among
prominent legal educators and in numerous law schools around the
country -- is the idea that the U.S. can’t afford the old three-year curriculum with its elective courses and interdisciplinary
focus.

As the American Bar Association reassesses the nature of
legal education, many are calling for drastic changes in the way
lawyers are trained. One argument is that we need to offer a
stripped-down, two-year degree aimed narrowly at legal practice.
This would eliminate what Daniel B. Rodriguez, dean of the
Northwestern University law school, and Samuel Estreicher, a New
York University law-school professor, amazingly have called
“the third year, those famous semesters in which, as the saying
goes, law schools ‘bore you to death.’” Arizona recently became
the first state to allow students to take the bar exam during
their third year.

Electives typically are taken in the second and third
years. Given the general courses that an accredited legal
education must include, dropping the third year offers no time
for interdisciplinary electives. The new wisdom is that this
would be no loss. NYU has already made a third academic year
optional, allowing students to substitute practical
apprenticeships or foreign study for what they call a mere
“hodgepodge of electives.” Well-known legal commentator David
Lat has called for a return to the old apprenticeship model
after the second year.

This zeal for change is inspired partly by rising fears
about costs and student debt, a legitimate concern exacerbated
by the shrinking market for law-school graduates. Part of the
debt problem isn’t the fault of law schools: The cost of
undergraduate education, particularly at state institutions, has
risen rapidly. Students arrive at law school already shackled by
debt in a way that rarely happened previously.

Because a law degree was thought to lead immediately to a
remunerative career, law schools have been slow to make the
commitment to financial aid that undergraduate institutions
typically aspire to make. For some years, loan forgiveness and
outright scholarships have helped law students who elect a
career in public service. But other aid was largely absent until
very recently.

Financial Aid

All that is changing; law school deans today work hard (and
often successfully) to raise money for scholarship aid. We
believe the reason there is no trend toward a three-year
undergraduate degree is that wise administrators have long been
aware of the problem of cost and are addressing it creatively
through aid. Law schools are behind the curve, and they must
catch up, rather than diluting the quality of the education they
offer.

That conclusion assumes the traditional model has merit,
and it is this idea that the critics have challenged.
Denigration of the third year is caused not only by economic
panic, but also by a forgetfulness of Freund’s idea of a legal
practice deepened, enriched and made independent of social
control by the scientific study of society, or as Harper said,
“the whole field of man as a social being.”

The general idea of the Freund model is that lawyers are
influential members of a complicated and often troubled society.
They need all the help they can get if they are to have enough
understanding of social forces to operate effectively, rather
than just deferentially or by rote. One size does not fit all,
and there should be no list of interdisciplinary courses
required of all students.

A perusal of examples will begin to show what such courses
can offer the future practitioner. A student at Chicago (similar
to other law schools) might take a class with a leading
criminologist, studying philosophical theories of punishment and
the history of prisons -- and then visit the maximum-security
prison at Joliet, Illinois, the only surviving North American
exemplar of Jeremy Bentham’s famous “panopticon” (where
everyone is watched all the time). A future lawyer would gain an
invaluable set of tools, philosophical and historical, for
thinking independently and critically about a broken system of
imprisonment.

Interest Groups

Another student might select Public Choice with a leading
legal economist, learning how interest groups interact and how
attractive schemes are often derailed by paradoxical and
counterproductive interactions of interests that economists have
studied in depth. Such a student would have tools for thinking
critically about the legislative process and interest-group
advocacy.

Still others might take a seminar on Distribution, Taxes,
and Social Justice, co-taught by a philosopher who works on
justice (one of the authors) and a law professor who is a tax-policy expert. Their seminar juxtaposes philosophical accounts
of basic justice with the literature on optimal tax policy. Such
students are equipped to think broadly about taxation, which,
after all, is supposed to aim for social justice.

These are just a few examples of the Freund idea at work,
and students typically choose multiple electives that align with
their career plans. Some of these students will go into
government; others will work for nongovernmental organizations.

But lawyers who join firms also need to understand how
society works if they aspire to be independent thoughtful
leaders of their chosen profession, rather than passive
followers of custom. In the life of the firm, a deferential
model of lawyering (doing it because that is how it has been
done) will further erode professional standards.

Ernst Freund wanted wide-awake lawyering, and he was right
to say that it requires rigorous and scientific thinking about
social processes. If we heedlessly jettison that vision, our
whole society will be worse off.

(Martha C. Nussbaum is Ernst Freund distinguished service
professor of law and ethics at the University of Chicago.
Charles Wolf is a University of Chicago law-school graduate and
is a shareholder at Vedder Price PC in Chicago, where he has
practiced employee-benefits law since 1975.)